Legal Sidebari

Is Mandatory Detention of Unlawful Entrants
Seeking Asylum Constitutional?
August 20, 2019
Non-U.S. nationals (aliens) apprehended by immigration authorities when attempting to unlawfully enter
the United States are generally subject to a streamlined, expedited removal process, but may be placed in
“formal” removal proceedings and pursue asylum claims if found to have a credible fear of persecution.
Earlier this year, Attorney General (AG) William Barr, who has power to review adjudicatory decisions of
the Board of Immigration Appeals (BIA), the highest administrative body responsible for interpreting
immigration laws, concluded in Matter of M-S- that federal law requires the continued detention of aliens
screened for expedited removal who are transferred to formal removal proceedings pending adjudication
of their asylum claims (additional discussion of the AG’s decision can be found here). Recently, a federal
district court held in Padilla v. ICE that this mandatory detention scheme “violates the U.S. Constitution”
because it denies aliens who have entered the United States the opportunity to seek their release on bond.
As a result of the court’s ruling, unlawful entrants transferred to formal removal proceedings for
consideration of their asylum applications may not be indefinitely detained by immigration authorities
without a bond hearing.
Legal Background
The Immigration and Nationality Act (INA) authorizes, and in some cases requires, the Department of
Homeland Security (DHS) to detain aliens who are subject to removal. The immigration detention
scheme, however, is multifaceted with different rules depending on whether an alien is arriving in the
United States or apprehended within the country, whether the alien has engaged in certain proscribed
conduct, and whether the alien has been issued a final order of removal.
Generally, an alien who is subject to removal is placed in “formal removal” proceedings before an
immigration judge (IJ) within the Executive Office for Immigration Review (EOIR) of the Department of
Justice (DOJ). Under INA § 236(a), DHS’s Immigration and Customs Enforcement (ICE) “may” detain
the alien pending those removal proceedings, or release the alien on bond or the alien’s own
recognizance. If ICE decides to maintain custody, the alien may request review of ICE’s custody
determination at a bond hearing before an IJ.
Under INA § 235(b)(1), however, arriving aliens and “certain other aliens” who recently entered the
United States without inspection are subject to expedited removal if they lack valid entry documents or
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have tried to gain their admission by fraud or misrepresentation. An alien placed in expedited removal
may be ordered removed without a hearing unless the alien indicates an intention to apply for asylum or a
fear of persecution if removed to a particular country. INA § 235(b)(1) instructs that, if the alien is found
to have a credible fear of persecution, he or she “shall be detained for further consideration of the
application for asylum” in formal removal proceedings. Although detention is generally mandatory under
INA § 235(b)(1), DHS has authority to parole the alien “for urgent humanitarian reasons or significant
public benefit.” There is no administrative or judicial review of the parole decision.
Over the years, immigration authorities and reviewing courts have taken differing views on the interplay
between the mandatory detention regime for aliens who are initially subject to expedited removal and the
discretionary detention regime that generally applies to aliens placed directly in formal removal
proceedings. If an alien is first screened for expedited removal, does he or she remain subject to the
mandatory detention requirements of INA § 235(b)(1) if transferred to formal removal proceedings to
pursue asylum claims? Or can DHS release all or some subset of these aliens on bond or their own
recognizance once transferred to formal removal proceedings?
In 2005, the BIA ruled in Matter of X-K- that INA § 235(b)(1)’s mandatory detention scheme applied to
arriving aliens (i.e., those apprehended at a port of entry) who were transferred to formal removal
proceedings after being found to have a credible fear of persecution, but not to “certain other aliens” who
entered the United States without inspection and were initially screened for expedited removal. The BIA
reasoned that, unlike arriving aliens placed in formal removal proceedings, “certain other aliens” first
screened for expedited removal do not fall within any of the classes of aliens enumerated by DOJ
regulations as ineligible for bond hearings.
But in 2018, the Supreme Court in Jennings v. Rodriguez read INA § 235(b)(1) as “unequivocally”
requiring the detention of all aliens first placed in expedited removal but then transferred to formal
removal proceedings. Even so, the Court did not decide whether the indefinite detention of aliens without
bond under INA § 235(b)(1) could violate the Due Process Clause—leaving it to lower courts to decide,
in the first instance, whether prolonged detention under that authority may be unconstitutional.
At least partially prompted by the High Court’s decision in Jennings, AG William Barr issued a decision
in Matter of M-S- overturning the BIA’s earlier opinion in Matter of X-K-. (Though responsibility for
administering federal immigration laws is divided among several agencies, the AG’s rulings on questions
of law are controlling.) The AG ruled that aliens subject to expedited removal who are placed in formal
removal proceedings after a positive credible fear determination “remain ineligible for bond, whether they
are arriving at the border or are apprehended in the United States.”
Padilla v. ICE: Procedural History and Preliminary Injunction
Following the Supreme Court’s decision in Jennings but before the AG’s ruling in Matter of M-S-, a
group of asylum seekers who entered the United States without inspection and were placed in formal
removal proceedings after establishing a credible fear of persecution brought a class action lawsuit against
immigration authorities in the U.S. District Court for the Western District of Washington. The plaintiffs
claimed, among other things, that they were subject to excessively prolonged detention during their initial
expedited removal screenings and upon their transfer to formal removal proceedings, and that this
prolonged detention violated their due process rights.
The federal district court granted the plaintiffs’ motion to certify a nationwide “Bond Hearing Class”
comprising “all detained asylum seekers who entered the United States without inspection” who are
initially screened for expedited removal and are found to have a credible fear of persecution, and who are
not provided a bond hearing within 7 days of requesting one.

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Then, on April 5, 2019, the court determined that EOIR’s failure to conduct bond hearings promptly
likely violated the aliens’ right to due process. The court granted the plaintiffs’ motion for a preliminary
injunction requiring EOIR to (1) conduct bond hearings for detained aliens within the “Bond Hearing
Class” within 7 days of a bond hearing request, and release any alien whose detention time exceeds that
7-day limit; (2) place the burden of proof on DHS in those bond hearings to show why the alien should
not be released; (3) record the bond hearing and produce a transcript; and (4) produce a written bond
decision “with particularized determinations of individualized findings.” Citing the BIA’s decision in
Matter of X-K-, which at the time was still controlling on immigration authorities, the court declared that
asylum seekers determined to have a credible fear of persecution may “request release from custody
during the pendency of the asylum process.”
The Federal District Court’s Amended Decision in Padilla
Following Matter of M-S-, the DOJ moved to vacate the court’s preliminary injunction in Padilla. The
DOJ argued that, because the AG overturned Matter of X-K-, which the court had relied on in concluding
that the plaintiffs had the right to seek bond, the “entire premise” of the court’s decision was no longer
valid. Plaintiffs responded by filing an amended complaint and moving for a modified injunction, arguing
that the AG’s “elimination of bond hearings” violated their constitutional right to due process. In the
alternative, the plaintiffs claimed the AG’s ruling violated the Administrative Procedure Act (APA)
because it purported to amend DOJ regulations for bond without complying with notice-and-comment
procedures.
On July 2, 2019, the federal district court modified its preliminary injunction. Acknowledging that its
prior order “sprang from an understanding (as a result of the ruling in X-K-) that the class members were
entitled to a bond hearing,” the court determined that the AG’s ruling in Matter of M-S- warranted a
“fresh analysis” of the plaintiffs’ claims. The court considered the plaintiffs’ contention that their inability
to seek bond given the AG’s ruling violated their right to due process, and held that they were likely to
succeed on the merits of that claim. The court reasoned that the plaintiffs had a “constitutionally-protected
interest in freedom from unnecessary detention,” and rejected the DOJ’s contention that they had no
constitutional protections because they were “excludable aliens.” Because the plaintiffs were apprehended
within the United States, they were “entitled to due process protections.” The court concluded that the
plaintiffs’ liberty interests, the risk of erroneous deprivation of those interests without bond hearings, and
the valuable procedural safeguards provided by bond hearings outweighed the government’s interest in
the “efficient administration of immigration laws.” The court also noted that although the Supreme Court
in Jennings had read INA § 235(b)(1) as requiring detention without bond, the High Court did not decide
whether that statutory mandate was unconstitutional.
The district court, on the other hand, determined that plaintiffs were unlikely to succeed on the merits of
their claim that the AG violated the APA by changing existing regulations on bond. The court reasoned
that the challenged regulations concerned the authority to release aliens on bond under INA § 236(a), but
plaintiffs were subject to INA § 235(b)(1)’s provisions instead.
Even so, because the court determined that the plaintiffs had established a likelihood of success on their
due process claim, the court affirmed its previously entered injunction requiring EOIR to conduct bond
hearings within 7 days of a bond hearing request by members of the “Bond Hearing Class,” and to release
any class members whose detention time exceeds that 7-day limit. Additionally, the court again ordered
EOIR to require DHS to show why an alien should remain detained at the bond hearing, produce a
transcript of the hearing, and provide a written decision. And the court modified its previous injunction to
rule that INA § 235(b)(1)’s prohibition against release on bond of aliens placed in formal removal
proceedings after establishing a credible fear of persecution “violates the U.S. Constitution,” and that
members of the “Bond Hearing Class” are “constitutionally entitled to a bond hearing before a neutral
decisionmaker” pending adjudication of their asylum claims.

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Future Judicial Developments
While the Supreme Court in Jennings ruled that DHS has statutory authority to detain aliens, potentially
indefinitely, pending their formal removal proceedings, the Court did not address constitutional arguments
against this framework. The district court in Padilla, however, has squarely confronted that question,
answering that INA § 235(b)(1)’s mandatory detention scheme is unconstitutional because it denies aliens
who have entered the United States the opportunity to challenge their detention at bond hearings. The
court’s decision effectively bars DHS from indefinitely detaining unlawful entrants without an
opportunity to seek bond pending consideration of their asylum claims.
The DOJ appealed the federal district court’s order to the U.S. Court of Appeals for the Ninth Circuit.
Pending the appeal, the Ninth Circuit has stayed the lower court’s injunction requiring EOIR to hold bond
hearings within 7 days for members of the “Bond Hearing Class,” release class members whose detention
time exceeds that period, require DHS to have the burden of proof at the bond hearing, and develop a
transcript and written bond decision. But the Ninth Circuit has declined to stay, pending appeal, the lower
court’s ruling that INA § 235(b)(1) is unconstitutional and that members of the “Bond Hearing Class” are
“constitutionally entitled to a bond hearing.” Thus, at this point, members of the “Bond Hearing Class”
may continue to seek bond pending their formal removal proceedings.
On appeal, the DOJ may renew its argument that the members of the “Bond Hearing Class” have no
constitutional protections because they were apprehended shortly after entering the United States without
inspection. The Supreme Court has long recognized that aliens who have physically entered the United
States, even unlawfully, are “persons” under the Fifth Amendment’s Due Process Clause. Due process
protections generally include the right to a hearing and a meaningful opportunity to be heard before
deprivation of a liberty interest. But the Court has not squarely addressed how far these protections extend
to unlawfully present aliens placed in removal proceedings. The Court has, at times, suggested that the
scope of due process may turn upon whether the alien has been admitted into the United States or
developed substantial ties to this country.
Yet the Court has recognized that aliens at the threshold of initial entry, including those who are detained
within the United States pending determinations of their admissibility, have less constitutional
protections, and are generally entitled only to whatever procedures Congress provided by statute. This
distinction, known as the “entry fiction doctrine,” allows courts to treat an alien seeking admission as
though he had never entered the country, even if he is physically on U.S. soil. For instance, in
Shaughnessy v. United States ex rel. Mezei, the Supreme Court in 1953 upheld the indefinite detention of
an alien seeking admission into the United States, concluding that the alien had not made an “entry”
despite being detained on Ellis Island, and could be treated “as if stopped at the border.”
In Padilla, the court determined that the plaintiffs were “non-arriving aliens” because they were
apprehended within the territorial boundaries of the United States, and thus entitled to due process
protections. But other lower courts, citing Mezei and the entry fiction doctrine, have determined that
“recent clandestine entrants” who were apprehended within hours of entering the United States, and who
had no substantial ties to this country, were “assimilated to the status of an arriving alien” and had no
constitutional protections based on their physical presence alone. Conversely, some courts have held that
aliens arriving in the United States have sufficient constitutional rights to challenge a potentially
indefinite detention, regardless of whether they had entered the country or developed substantial ties, and
distinguished Mezei as a case involving national security concerns.
If the Ninth Circuit affirms the Padilla court’s decision (or the court overturns that decision and
the plaintiffs seek further review), the Supreme Court may decide to reassess Mezei and consider
the degree to which aliens seeking admission into the United States—including “recent
clandestine entrants” who lack substantial ties to this country—have constitutional protections

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that may prevent their prolonged detention by immigration authorities. Up until now, the Court
has declined to address that issue. For example, in Zadvydas v. Davis, a case involving a
challenge to the indefinite detention of admitted aliens who were ordered removed, the Court in
2001 simply distinguished Mezei because the earlier case involved the detention of an alien
seeking admission into the United States. The Zadvydas Court, moreover, declined to consider
whether “subsequent developments have undermined Mezei’s legal authority.” Given the federal
district court’s decision in Padilla that INA § 235(b)(1)’s mandatory detention provision is
unconstitutional, the Court might decide that a “fresh analysis” is warranted.

Author Information

Hillel R. Smith

Legislative Attorney




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